WDC_IMANAGE-1587165.1

No. 10-1343

IN THE UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUIT

____________________ UNITED STATES POSTAL SERVICE,

Petitioner,

v.POSTAL REGULATORY COMMISSION,

Respondent.

____________________ On Petition for Review from thePostal Regulatory Commission,PRC Docket No. R2010-4

____________________

CONSOLIDATED OPPOSITION TO THE MOTIONS TO INTERVENE OFNEWSPAPER ASSOCIATION OF AMERICA, TIME WARNER INC.,VALASSIS DIRECT MAIL, INC., AFFORDABLE MAIL ALLIANCE,ALLIANCE OF NONPROFIT MAILERS, ASSOCIATION FOR POSTALCOMMERCE, DIRECT MARKETING ASSOCIATION, INC., MAGAZINEPUBLISHERS OF AMERICA, INC., NATIONAL POSTAL POLICYCOUNCIL, AMERICAN BUSINESS MEDIA,AND NATIONAL NEWSPAPER ASSOCIATION

Pursuant to Federal Rules of Appellate Procedure 27(a)(3)(A) and 27(a)(2),Petitioner United States Postal Service hereby opposes the separate Motions toIntervene filed by the Newspaper Association of America, Time Warner Inc., Valassis Direct Mail, Inc., the Affordable Mail Alliance, the Alliance of NonprofitMailers, the Association for Postal Commerce, the Direct Marketing Association,Inc., the Magazine Publishers of America, Inc, the National Postal Policy

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WDC_IMANAGE-1587165.1

Council, American Business Media, and the National Newspaper Association.These eleven would-be intervenors were not “parties” below; they were merelycommenters. Accordingly, they are not entitled to intervene as of right. Further,allowing a host of mere commenters to intervene permissively in this reviewproceeding would unduly burden the original parties and this Court, interferingwith the Court’s ability to resolve this petition with the expeditiousness theCourt has already recognized is needed. Therefore, the motions should bedenied.The Postal Service sought this Court’s review under 39 U.S.C. § 3663,challenging the Postal Regulatory Commission (“PRC”)’s decision to deny thePostal Service’s expedited request to raise postal prices under “extraordinary orexceptional circumstances.”

See

39 U.S.C. § 3622(d)(1)(E). Section 3663provides that this Court’s review shall be in accordance with 28 U.S.C. Chapter158, which in turn sets the standard for intervention.

See

28 U.S.C. § 2348.

The motions here fail that standard.

First

, the movants are not entitled to intervene as of right. Section 2348provides that a “party in interest in the proceeding before the agency” may

The Newspaper Association of America and the National Postal Policy Council alsocited 47 U.S.C. § 402(e) in their respective motions. That statute has no bearing here, as itgoverns review of decisions of the Federal Communications Commission, not the PostalRegulatory Commission. 47 U.S.C. §§ 402(b), (e); 154(a).

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intervene “as of right” in the proceeding to review the agency’s order. But noneof the eleven would-be intervenors was a party to the proceeding before theagency. They did not seek to intervene below, even though PRC regulationsallow intervention.

See

39 C.F.R. § 3001.20.

Instead, they simply commentedon the Postal Service’s exigent rate request.

The PRC’s regulations state flatlythat commenters are “not parties.” 39 C.F.R. § 3001.20b. Because the movantswere not “parties” below, they are not entitled to intervene as of right here.

E.g., Alabama Power Co. v. FCC

, 852 F.2d 1361, 1366-67 (D.C. Cir. 1988).

Second

, permissive intervention would be inappropriate. Section 2348provides that entities “whose interests are affected by the order of the agency”may be granted permission to intervene in the review proceeding. Whenevaluating motions to intervene under Fed. R. App. P. 15(d), appellate courts

Even if the movants had “intervened” before the PRC, that would not be enough tomake intervention proper in this Court. PRC regulations are clear that the standard for whatthe PRC refers to as intervention is less demanding than the standard for intervening in thisCourt, as a party may “intervene” before the PRC without showing that it has “such an interestin the proceeding that [it] would be aggrieved by an ultimate decision by order of theCommission.” 39 C.F.R. § 3001.20(e);